remanded H-1B Case: E-Commerce

U.S. Citizenship 
and Immigration 
Services 
In Re: 9736921 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 5, 2020 
The Petitioner, a wholesale merchant, seeks to employ the Beneficiary temporarily as an "e-commerce 
analyst" under the H-lB nonimmigrant classification for specialty occupations. 1 The H-lB program 
allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires 
both: (a) the theoretical and practical application of a body of highly specialized knowledge; and (b) 
the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite for entry into the position. 
The California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 While we conduct de nova review on appeal, we 
conclude that a remand is warranted in this case because the Director's decision appears insufficient 
for review. As noted, the Director concluded that the proffered position is not a specialty occupation. 
However, the Director should evaluate which of the following issues to address before making a 
specialty occupation determination : 
1. Whether the Petitioner designated the correct standard occupational classification (SOC) code 
on the Department of Labor (DOL) ETA Form 9035 & 9035E, Labor Condition Application 
for Nonimmigrant Workers (LCA); 
2. Whether the Petitioner specified the correct prevailing wage rate on the LCA; 
3. Whether the Petitioner made a material change to the position's duties when comparing those 
initially submitted to the duties in the response to the Director 's request for evidence (RFE); 
4. The impact on the petition based on the fact that a significant portion of the initially submitted 
duties were copied directly from the Occupational Information Network (O*NET) OnLine 
report for the occupational category of Market Research Analysts and Marketing Specialists; 
and/or 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 101(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
5. Ultimately, whether the Petitioner has demonstrated the substantive nature of the proffered 
position. 
We briefly address these issues below. Relating to item one, the duties it offered within its RFE 
response appear to reveal that the position should have been classified under an SOC code in the areas 
of logistics or supply chain managers. As a result, it appears the Petitioner may have utilized the 
incorrect SOC code on the LCA. 4, 5 Without knowing the answer to that question, we cannot make a 
determination on the specialty-occupation question based on the current record. We therefore are 
withdrawing the Director's decision and remanding the matter for further review of the record and 
issuance of a new decision. Specifically, the Director should first determine whether (1) the Petitioner 
obtained a certification from DOL that it filed an LCA in the occupational specialty in which the 
Beneficiary would be employed; and (2) the LCA was certified for the appropriate occupational 
category, and therefore corresponds to and supports this H-lB petition. 6 
Additionally, it appears the Petitioner included skillsets spread across multiple SOC codes. Therefore, 
the Director should evaluate whether the Petitioner's Level I wage rate it designated on the LCA was 
correct. Moving to the possible material change issue, the Petitioner initially presented duties directly 
associated with the Market Research Analysts and Marketing Specialists occupation, which relates to 
researching market conditions and gathering information on competitors. Then in its RFE response, 
the Petitioner presented vastly different duties it organized under the following areas: purchasing; 
receiving goods; distribution; warehouse; shipping; and leading. 
Turning to item four, the Petitioner provided duties it copied directly from the O*NET. Providing 
generic job duties from O*NET or another Internet source for a proffered position is generally insufficient 
to establish eligibility. 7 The duties themselves provide the nature of the employment. 8 While this type 
of description may be appropriate when defining the range of duties that may be performed within an 
occupational category, it does not adequately convey the substantive work that the Beneficiary will 
perform within the Petitioner's business operations. 9 
4 While DOL ceitifies the LCA, U.S. Citizenship and Immigration Services (USCTS) determines whether the LCA's 
attestations and content corresponds with and supp01ts the H-1 B petition. See 20 C.F.R. § 655.705(6) ("OHS determines 
whether the petition is supp01ted by an LCA which corresponds with the petition .... "). See also Matter of Simeio 
Solutions, 26 T&N Dec. 542, 546 n.6 (AAO 2015). When comparing the SOC code or the wage level indicated on the 
LCA to the claims associated with the petition, USCTS does not purport to supplant DOL's responsibility with respect to 
wage determinations. There may be some overlap in considerations, but USCIS' responsibility at its stage of adjudication 
is to ensure that the content of the DOL-certified LCA "corresponds with" the content of the H-lB petition. 
5 Before filing a petition for H-lB classification, the regulation requires petitioners to obtain certification from DOL that 
the organization has filed an LCA in the occupational specialty in which its foreign national personnel will be employed. 
8 C.F.R. § 214.2(h)(4)(i)(B)(l). 
6 See 8 C.F.R. § 214.2(h)(4)(i)(B)(l); Simeio Solutions, 26 I&N Dec. at 546 n.6; 20 C.F.R. § 655.705(b). 
7 Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
8 Id. 
9 DOL guidance states that for a wage level determination, it is impoltant that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
the level of understanding required to perform the job duties." U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
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Accordingly, the matter will be remanded to the Director to consider these issues and enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
determination and any other issue. As such, we express no opinion regarding the ultimate resolution 
of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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